Smith v The Queen - [2003] TASSC 56

[2003] TASSC 56

CITATION: Smith v R [2003] TASSC 56

PARTIES:  SMITH, Bruce Jason
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 58/2002
DELIVERED ON:  3 July 2003
DELIVERED AT:  Hobart
HEARING DATES:  2 June 2003
JUDGMENT OF:  Underwood, Slicer and Blow JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Particular circumstances involving miscarriage - Misdirection or non-direction - Lies not relied upon as proof of guilt - No requirement for an Edwards direction about consciousness of guilt.

Edwards v R (1993) 178 CLR 234; Zoneff v R (2000) 200 CLR 234, applied.
Aust Dig Criminal Law [958]

REPRESENTATION:

Counsel:
             Appellant:  P Holdenson QC
             Respondent:  T J Ellis SC
Solicitors:
             Appellant:  GA Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number: [2003] TASSC 56
Number of Paragraphs: 25

Serial No 56/2003
File No CCA 58/2002

BRUCE JASON SMITH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
BLOW J
3 July 2003

Order of the Court

Appeal dismissed.

Serial No 56/2003
File No CCA 58/2002

BRUCE JASON SMITH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
3 July 2003

1 For the reasons expressed by Slicer J, I agree that this appeal should be dismissed.
File No CCA 58/2002

BRUCE JASON SMITH v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
3 July 2003

The appellant was convicted of the murder of his wife's former lover. The affair was confirmed by the wife on the day before the act of homicide. The Crown case was that on 25 September 2001, the appellant drove to the home of the deceased and, following a confrontation, called for an ambulance to tend to an injured and unconscious person who died some days later without regaining consciousness.

There was no dispute that the appellant had been present at the house and that the injuries suffered had been caused during the course of the confrontation. The issues at trial were ones of intent and self-defence.

In support of its case of murder, the Crown relied upon the following matters:

(1)The cause of death was a brain injury through fracture of the skull which required the application of considerable force.
(2)Forensic examination of the scene showed blood patterns in two places and a pooling of blood on the floor which, given the injuries to the deceased, were consistent with his being kicked or violently hit whilst on the floor.
(3)The absence of injury to the face of the appellant and the identification of blood on his boots.
(4)The statement of the appellant to the emergency service stating the reason for the call to be "an assault. He's been hit around the head", and his subsequent response to enquiry by an ambulance officer that "All you need to know is this is an assault" and that he had effected the assault.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v The Queen

Details

AGLC: Smith v The Queen [2003] TASSC 56
Case: [2003] TASSC 56
Decision Date: 3 July 2003

CaseChat Overview and Summary

In the case of Smith v The Queen, the Court of Criminal Appeal dismissed the appeal of Bruce Jason Smith against his conviction for the murder of his wife's former lover. The appellant argued that the trial judge erred in failing to direct the jury that they should not use any lies told by the appellant as evidence of guilt unless they were satisfied of the requisites for using such lies. The court found that the trial judge did not err in this regard as the Crown did not rely on any lies told by the appellant as evidence of guilt or consciousness of guilt. The court held that an Edwards direction was not necessary in this case as the lies, if any, went only to credit and were not used as evidence or implied admissions of guilt. The court dismissed the appeal and upheld the conviction.

Orders